Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings has been published in the Official Journal.
The story is on the top of the front page of all Japanese newspapers: Yesterday the Tokyo District Court awarded 20 billion yen to a former employee as compensation for the "invention of the century". That is in contrast to the 20.000 yen the company paid him in the first place. See this article in the Japan Times for some coverage in English.
They would have awarded him 60 billion, but he only asked for 20 (which is still much more than a hundred million dollars). It seems that he's not a greedy guy.
Trembling Leaf has some first comments, in discussion with Suehiro (in Japanese).
They are wondering why the pro-patent crowd behind the concept of "nation-building based on intellectual property" is receiving that particular award with rather restricted enthusiasm. Stronger intellectual property protection seems to be not for the creators, but for the companies employing them.
Some comments to the draft of the version 2.0 Creative Commons licenses.
Obviously I share with Dan Bricklin the sentiment of being pleased to hear that they have dropped the warranty in the default license texts, since I opposed it strongly here. If you read Japanese, I also have an article in PDF format up here summarizing my criticism of the warranty in the 1.0 version.
I have two comments on the issue in the draft 2.0 version.
One: There might be a need to change the wording of section 6 as well. The part "AND EXCEPT FOR DAMAGES ARISING FROM LIABILITY TO A THIRD PARTY RESULTING FROM BREACH OF THE WARRANTIES IN SECTION 5," is still there. But what "warranties in section 5" remain?
Two: The draft goes not as far as the GPL or the MIT Creative Commons license. These include language to disclaim any warranty. In contrast, version 2.0 just says nothing about the issue.
As I have pointed out here, I think that the GPL or MIT approach might go to far in excluding liability, since it excludes even liability for acts in bad faith. For example, if some company sees to it that their proprietary code ends up in some Open Source project so that they can start suing people later on, they might be acting in bad faith and not deserve any relief from a warranty disclaimer. So I still think that the compromise of the German Open Content Lizenz project is a good idea.
I have another comment on the new back-link requirement. One might set this up somewhat different.
In almost all cases the licensor never knows if a license contract with a licensee has been closed or not. The licensor usually offers the license and the licensee accepts that offer by some act the licensor never hears of.
But that could be different when using the work on the Internet.
Here you could say that acceptance of the license by the licensee is made conditional on the backlink. The act of backlinking would be the act of accepting the license contract.
That way, anybody not backlinking would not have a license in the first place.
I don't know if that's a good idea. I will leave it for later to possibly offer an opinion on the issue.
At the CC weblog, one of the publishers of the Wikitravel project is worried that dropping the warranty would increase his risk. I posted the following comment there:
Evan Prodromou:
If you as a publisher use a CC 1.0 license on your Wikitravel site, all the warranty does is _increase_ your liability, since _you_ guarantee to have cleared all rights.
There is no way to "ensure that you are not responsible for the misdeeds or ignorance of one misguided contributor". The only thing the warranty could do for you is give you rights to sue that particular contributor, if he has assumed the position as a licensor in relation to you.
That obviously won't help you if you don't know the name of that contributor, which might happen in many cases in a Wiki project.
Anyway, whatever contractual relation you have or don't have with contributors will have no influence on your liability to third parties who claim some kind of infringement. That third party is not a party to any license contract, so its rights in relation to you as a publisher can't be reduced by any clause of a contract between you and a contributor.
While I doubt that the 1.0 CC license solves your problem, I certainly understand that this might worry anyone who publishes a Wiki project, and I think there is a need to think about what solution there might be. A good starting point would seem to be the way the Wikipedia project handles the issue. Note that the GNU Free Documentation License Wikipedia is using does not include a warranty like the 1.0 CC license, but incorporates all warranty disclaimers contained in the Document. Wikipedia offers to take down immediately copyright infringing content. And since it is a Wiki, the copyright holder can blank the page as a provisional measure as well.
argues that the Iraq war was illegal under American constitutional law. I agree. And I think that is as obvious as the violation of international law by attacking and occupying Iraq for no particular reason in an undeclared war.
If Americans allow the Bush government to get away with this, that clearly makes America an inferior democracy.
FFII has announced that they have filed an opposition against the gift-ordering patent the EPO has granted to Amazon.
Link found at Slashdot.
is probably something they won't object to very strongly.
But a patent on "a method for paying open source volunteers"?
Since patents are basically monopoly rights, this patent makes it illegal to pay for open source development in the covered way.
So I doubt that this will be a very popular patent in the Open Source community.
But I, for one, like it a lot. One more great example to point at when objecting to software patents.
Link found at Slashdot.
against Lemelson, they announced here. This is a lawsuit filed not by a patent holder, but by Cognex Corporation to seek a declaration that the defendant's patents are "invalid, unenforcable, and not infringed".
The Cognex Corporation press release calls Lemelson's business model "legalized extortion".
A similar phrase was used by a German NGO more than 10 years ago against the life insurance industry, speaking of "legal fraud".
Both phrases are colorful rhetoric, but obviously containing a contradiction. The "Lemelson campaign" can be either legal or extortion, but not both at the same time.
It might be an interesting question open to debate if raising absurd patent claims and settling them for less than it would cost to defend the lawsuit is "illegal extortion", as opposed to "legalized extortion". I won't try to answer that here. But with the rather wide spread criticism of the present state of the patent system, that question might get some serious attention one of these days.
While the plaintiff got exactly the declaration they wanted, they don't seem to be entitled to collect any damages from the patent holders in this case.
Link found at Slashdot.
is an NYT article by Robert S. Boynton which reports on some "copyright horror stories" and American academic positions in the debate about copyright in the Internet age. The author, however, does not tell what model he would choose.
Link credit: Dave Winer.
I certainly was, when I discussed the idea that someone might assert a copyright on silence or the concept of nothing.
However, as Margaret Marks kindly pointed out in a comment, a short Google search comes up with this 2002 CNN article on a real lawsuit based on Cage's copyright on his work "4.33".
It appears that a British musician dared to include one minute of silence in one of his albums and was sued by the John Cage Trust for copyright infringement.
The suit was settled, so we will never know what the British courts would have done with it.
But I think this is a remarkable example of copyright extremism.
Update: Now it seems that one minute of silence is sold online with DRM protection, see the BoingBoing story here.
Red Hat has changed the standard "Subscription Agreement" to include a warranty in the case of third party intellectual property infringement claims. See Number 6 of the Agreement here, the Red Hat Open Source Assurance FAQ, the January 20th Red Hat press release, and a ZDNet article.
That warranty gives Red Hat customers more rights than the GPL, which excludes any warranty. But it gives them much less than the Creative Commons warranty, even though Red Hat is charging their customers while most Creative Commons licensors give away their content for free.
There is still no official reaction from Creative Commons to the criticism of their warranty.
Link found at Greplaw.
Update: Creative Commons announced that they plan to disclaim warranties as a default, leaving people who want to give a warranty the freedom to do so, the day after I wrote the post above. Thanks to Glenn Otis Brown in a comment to this entry for the lead.
Update 2: IBM, in contrast, says they don't plan to give any indemnification warranties to customers. They think that's not necessary since they will win their lawsuit against SCO anyway.
Rainer Langenhan points to this Eur-Lex page on legislative drafting.
When drafting a new law, the first rule is to make sure that no reader understands your text.
At least that might happen easily if there is no quality control for legislation. And the EU has adopted guidelines to avoid legal code that impresses ordinary people as just so much gibberish. Anyone interested in working on writing style might find some of the "house rules for the preparation of text" useful.
Back to my rather cryptic John Cage 1 post a few days ago. I have some explaining to do.
First, thanks to Margaret Marks for this blog entry on a BBC radio broadcast of John Cage's composition "4.33", which is nothing but silence, but seems to be his most famous work.
Obviously, there is the question if that composition is protected by copyright.
I doubt that even the most radical copyright extremists would want to acknowledge a copyright on nothing, or the idea of nothing.
But let's assume for a moment that there is, and explore some possible consequences.
My post "John Cage 1" might be in violation of that copyright, since it also consisted essentially of nothing.
And anyone not yet blogging would also violate Cage's copyright, because they are keeping silent. I said as much to students in my graduate seminar on EU law yesterday to try getting some of them hooked on blogging. I am not sure how many of them will be convinced of my theory that they are legally obliged to speak up. Judging by their reaction I thought they were laughing me out of the room, which is exactly the right reaction to most copyright extremism. Well, time will tell.
And that might be an explanation for the fact that some compulsive blogging addicts feel guilty if they don't post anything for more than two minutes. They don't want to risk infringing Cage's copyright on nothing.
Now back to a more serious observation. I think this is an interesting example to discuss the difference between copyright and patent protection. For example, Article 1 Paragraph 2 of the 1991 EU directive on the legal protection of computer programs says:
2. Protection in accordance with this Directive shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive.
That would mean that the idea of nothing can't be protected by copyright under that concept of copyright protection. And there is really not much way for creative variation in expressing that idea.
Patent law however has no such restriction. So maybe we will see a software patent on the concept of nothing some time in the future. For all I know, somebody might already own it right now.
On the other hand, I would prefer to see it the other way round: Not software patents on nothing, but no software patents.
Now let's drop the copyright extremism and go back to the reasonable position that there is no copyright on Cage's work or idea.
That obviously hasn't stopped this particular work from becoming famous and being broadcast by the BBC over fifty years after the premiere.
But couldn't everybody else just get a free ride on this work? I, for that matter, could publish "4.34" tomorrow, beating Cage by one whole second.
But no one would pay any attention whatsoever to that.
The fact that "4.33" is world-famous while silence by anyone else would just be ignored is due to the other fact that Cage already was a famous composer when his work was released. Much of the value of this particular work came from the fact that the name "Cage" was attached to it.
And that value is protected by trademark law concepts.
One might ask the question if that type of protection is good enough for the purpose in the case of Cage's "4.33", and if so, what exactly keeps us from saying that it is good enough for all works. I won't try to answer this question now, leaving that for later.
And one more thing: I think it is somewhat sad to be remembered most for a work that essentially consists of nothing. While I am not going to try to judge my own blog postings myself, I sure hope that "John Cage 1" won't be the all time top posting here in terms of reader numbers and attention. Or even worse, in terms of actual merit.
The Japanese "Invention Scientific Society" (Hatsumei Gakkai), which is an association aimed at helping individual inventors to apply for patents themselves, has published a new book, titled "Chiteki zaisan no katsuyouhou" (how to make use of intellectual property).
On page 44 they describe the Japanese patent number 2608000 (you can search for abstracts with the number here).
The patent covers a certain way of arranging the desks in a business doing consultation work. That obviously covers most law offices. So this overbroad business method patent might come back to bite lawyers who arrange their desks in a way that is covered.
The abstract gives Februar 13, 2003 as a "date of extinction of right" . So maybe people can go back to arrange their offices however they want now.
But anyway, I agree completely with the authors of the book that this is quite a remarkable patent.
Schockwellenreiter points to this Register article about an Internet patent on one possible way of using the domain name system. The patent holder seems to start lawsuits based on this patent.
I don't know what the American courts will do with that lawsuit. However, in a recent German case not only the claim of owning part of the domain name system was thrown out, but there were criminal investigations based on fraud charges against the owners of that patent. I have discussed this (in German) here, here, and here.
Rainer Langenhan points to this Eur-Lex page, where the EU Commission starts publishing European Law in nine languages used in the states scheduled for accession to EU this year.
This story has received quite some attention on Japanese blogs, with the most extensive coverage at Trembling Leaf, and the first article by Hideo Ogura.
Nobuhiro Nakayama is a professor at Tokyo University and one of the leading Japanese academics in the field of intellectual property law.
As such he is a member of the Strategic Council on Intellectual Property set up by the Intellectual Property Basic Law of 2002.
However, it turns out that they aren't really listening to him.
And in a statement at the last session on December 17th, Nakayama has raised some angry criticism and said that there doesn't seem to be any point in continuing serving as a member. The transcript is available online, but there is no English translation.
The problem is: Decisions are not taken by the whole Council, but by some kind of subcommittee, where Nakayama isn't a member.
That in turn means that the Council isn't listening to him. Nakayama even found out first about the draft of the first "Strategic Program" by an article in the Nikkei newspaper, where it was leaked before he as a member of the Council received a copy. That does seem to be a rather surprising way to organize things. And if they are not listening to an academic of his class, they certainly won't give other interested lawyers, judges or academics any voice in the discussion.
So yes, this clearly raises some questions about the quality of the debate in the "Strategic Council on Intellectual Property".
Just added Andreas Bovens' blog "chosaq" to the blogroll.
He tracks developments in Japanese copyright law, mostly in English with some occasional Japanese quotes.
on Fingerprinting Foreigners in his newest Crypto-Gram. He doesn't think that's a good idea. I agree with his reasoning, which only states some common sense truth.
Of course, all countries competing with the U.S. for income from tourism will have a different view. The new measures will make it less likely that anyone would want to visit America and more likely that people carry their business elsewhere.
But I agree with Schneier. This is another sad step on the slippery slope to the status of "Formerly Free Country", with large costs in dollars, convenience, world opinion, and freedom, but no apparent useful increase of security.
Maximillian Dornseif outlines some discussion in German blogs on Aaron Swartz's "Downloading isn't Stealing" article.
While I think it is easy to see that "stealing" is fuzzy language for copyright infringement, Dornseif wants to know what would be the correct analogy. I am going to leave my comment to this question for a later post.
Trembling Leaf points to plans to change the Japanese copyright law to stop international exhaustion for music. He assumes that project will sail through in a timeframe of only several months.
CDs sold in other Asian countries for a lower price than in Japan would be stopped from being reimported to Japan by that new legislation.
Nobuo Ikeda also has some information on that project in this CNet Japan article.
Larry Lessig reports that Thomas Paine assigned the copyright to his pamphlet "Common Sense" to the Continental Congress, a public body. This kind of donating a copyright to a public body might be some early model for what Creative Commons wants to do.
I have pointed in Lessig's comment section to the new EU directive on re-use of public sector information, which was published in the Official Journal on December 31.
That directive is about the re-use of information which is owned by public bodies. It aims at making it easier to re-use such information by abolishing exclusive licenses and enabling more competition.
In the context of Creative Commons Article 8 of the directive seems to be of interest. That Article reads:
Licenses1. Public sector bodies may allow for re-use of documents without conditions or may impose conditions, where appropriate through a license, dealing with the relevant issues. These conditions shall not unnecessarily restrict possibilities for re-use and shall not be used to restrict competition.
2. In Member States where licenses are used, Member States shall ensure that standard licenses for the re-use of public sector documents, which can be adapted to meet particular licence applications, are available in digital format and can be processed electronically. Member States shall encourage all public sector bodies to use the standard licenses.
It will be interesting to watch what kind of standard licenses will be developed for that purpose and how they look compared to a Creative Commons license or the GPL.
will be a priority for the incoming Irish presidency, see this eurobusiness.com article.
As I have blogged before, this was also highlighted as a priority at the December European Council. And it has been an important goal at least since 2002.
Gudrun Schwarz describes a way to search on the free Eur-Lex service for Member States' legislation transforming directives in this comment on my German blog.
For example, if you display the 1995 directive on data protection, you get a long URL. Towards the end of that URL there is a field "numdoc=31995L0046".
Change the "3" in that number to "7" and you reach a list of transformation legislation, after one extra click on "more info".
I don't know why Eur-Lex chooses to put this information on the net without telling people how to reach it. Possibly this might stop to work anytime without warning.
Axel H. Horns reports on proposals to establishing an European Community Patent Court which would decide on lawsuits regarding the proposed Community patent regulation.
This useful article by Red Hat General Counsel Mark Webbink explains some facts and myths about open source software law. Found at slashdot.
Maximillian Dornseif and Michael Froomkin have discussed a Heise article reporting a recent German court decision on video surveillance. The court ordered that video surveillance of a public space in front of a department store should be restricted to an area of at the most one meter from the store. People passing that store need to be able to do so without getting caught by the camera.
The relevant article of the Federal Data Protection Act is (Translation by the Federal Ministery of the Interior):
Article 6b(1) Monitoring publicly accessible areas with optic-electronic devices (video surveillance) is allowable only in so far as it is necessary
1. to fulfill public tasks,
2. to exercise the right to determine who shall be allowed or denied access or
3. to pursue rightful interests for precisely defined purposes
and if there are no indications that the data subject’s legitimate interests prevail.
(2) The fact that the area is being monitored and the controller’s identity shall be made discernible by appropriate means.
(3) Data that have been collected under sub-section 1 above may be processed or used if this is necessary for the pursued purpose and if there are no indications that the data subject’s legitimate interests prevail. They may only be processed or used for another purpose if this is necessary to avert dangers to state security or public safety or to prosecute crimes.
(4) Where data collected through video-surveillance are attributed to an identified person, this person shall be informed about such processing or use in conformity with Sections 19a and 33.
(5) The data shall be deleted without delay, if they are no longer needed for the pursued purpose or if the data subject’s legitimate interests stand in the way of any further storage.
That article was introduced at the occasion of transforming the 1995 European data protection directive. The directive does not mandate this kind of restriction, however. German law goes farther than the level of protection required by the directive in this case.
Remember that story about the German woman who was detained when trying to enter the U.S. with a valid tourist visa?
Now it appears that the Department of Homeland Security is harrassing journalists.
They have a rule that Australian tourists can enter the U.S. without a visa, but journalists can't.
So, to enforce that rule, a woman writing for an Australian publication had her plans for an interview with singer Olivia Newton-John cancelled. She spent some time with handcuffs, but without food or drinks instead.
She was even denied a cup of tea, since that could have been used as a weapon.
This story got quite some attention in the Australian media. All major media outlets reported it.
Which is only natural, since if you are an Australian journalist, you would probably figure that it could have been you at the receiving end of the handcuffs and body searches.
The article doesn't explain why there is a need to keep Australian journalists out of America, as opposed to Australian tourists. What makes journalists so dangerous?
Well, maybe it's the fact that they can report about their harrassment to a large international audience. They have stronger weapons than a cup of tea.
Link found at Richard Stallman's political notes.
Update: Michael Froomkin comments: "How to Lose Friends and Upset People".